[1] Where the exercise of rights by deception constitutes a crime of fraud

[2] The case holding that even if an industrial accident compensation insurance benefit was in a position to receive it, if the industrial accident was applied for medical care by an unlawful method such as attaching a false witness's statement, even though there was no fact that the occupational accident occurred at a specific date, such an act cannot be accepted as a means of exercise of social norms

[1] In the case of the exercise of rights by means of deception, if the act belonging to the exercise of rights and the act of deception belonging to the said means are comprehensively observed, and such deception cannot be acceptable as a means of exercise by social norms, the act of exercise of rights constitutes fraud.

[2] The case holding that the defendant's act of receiving industrial accident compensation insurance benefits can not be accepted as a means of exercising social norms, barring special circumstances, if the defendant applied for medical care by improper means such as attaching a false witness's statement, even though he was in a position to receive industrial accident compensation insurance benefits on a specific date, even though he did not have any occupational accident at all.

[1] Article 347 of the Criminal Code / [2] Article 347 of the Criminal Code

[1] Supreme Court Decision 65Do1544 delivered on December 23, 1969 (No. 17-4, 36) Supreme Court Decision 96Do1405 delivered on October 14, 1997 (Gong1997Ha, 3551) Supreme Court Decision 2002Do5085 Delivered on December 24, 2002

Defendant

Prosecutor

Law Firm Seoil, Attorney Kim Jong-soo

Seoul District Court Decision 2002No8900 delivered on October 25, 2002

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

1. The judgment of the court below

According to the reasoning of the judgment below, the court below reversed the judgment of the court of first instance which found the defendant guilty of the facts charged of this case and sentenced the defendant not guilty.

A. According to the evidence admitted by the first instance court as guilty of the facts charged in this case, it is recognized that the defendant received the total sum of 26,31,000 won of temporary layoff benefits, etc. from the Korea Labor Welfare Corporation on the ground of the industrial accident described above, on September 12, 1997, as stated in the medical care application and witness statement at around 15:00 on September 12, 1997.

B. However, according to the evidence, the defendant was employed by the Credit Telecommunication Corporation and was employed on February 1997, 3 days in the same year, 24 days in the same year, 26 days in the same year, and 23 days in the same year from July 7 of the same year, 26 days in the same year, 10 days in the same year, and 10 days in the construction site subcontracted by the Credit Telecommunication Corporation from the Olim Construction Co., Ltd. around August of the same year, and the fact that 10 days in the vicinity of Gyeonggi-do can be recognized. Thus, it cannot be readily concluded that the defendant obtained money from the Korea Workers' Compensation and Welfare Corporation by deceiving the defendant on September 12, 1997, and that the defendant was not involved in an accident at the construction site on September 15, 197, it cannot be concluded that the defendant suffered from the credit injury of the same year from February 9, 197.

Therefore, considering whether the defendant had been suffering from an injury at the construction site of 197, it is difficult to believe that the judgment in its holding is as it is, and there is no other evidence to acknowledge it. Rather, in full view of the evidence in its holding, the head of the credit telecommunications construction work site of 197 knee and knee, knee, knee, etc., the defendant was assigned to the nearby hospital, and the head of 197 knee, knee, knee, knee, knee, knee, knee, kne, and 9 knee, the defendant was assigned to the nearby hospital, and the head of 19 knee, knee, knee, knee, 9 knee, knee, knee, kne, knee, knee, 19 knee, knee, 9 knee.

2. The judgment of this Court

However, it is difficult to accept such fact-finding and judgment of the court below.

A. In the case of the exercise of rights by means of deception, if the act belonging to the exercise of rights and the deception belonging to such means are comprehensively observed, and such deception cannot be acceptable as a means of exercise by social norms, the act of exercise of rights constitutes fraud (see Supreme Court Decision 2002Do5085, Dec. 24, 2002).

However, the court below held that if the defendant suffered from an injury during the course of work from February 1997 to September 2 of the same year, and there was a position to receive industrial accident compensation insurance benefits accordingly, the court below held that the crime of fraud is not established even if he received industrial accident compensation insurance benefits by falsely preparing and submitting an application for industrial accident compensation insurance benefits or a witness's statement, etc. different from the date, time, place, or accident actually occurred.

However, even if the Defendant assumed that he was in a position to receive industrial accident compensation insurance benefits, even if he did not have any such accident at the construction site at around 15:00 of September 12, 1997, if he received industrial accident compensation insurance benefits by filing an application for medical care by unlawful means, such as preparing and attaching a false witness’s statement, there is sufficient room to regard it as a degree that it can not be acceptable as a means of exercise of rights under social norms, barring any other special circumstances.

(2) On the 197, the defendant's statement that he/she was unable to know the 17th anniversary of his/her 197 construction site and that he/she was unable to know his/her 9th anniversary of his/her 7th anniversary of his/her 197 construction site, the court below found that he/she was unable to know his/her 17th day after his/her 7th day after his/her 14th day after his/her 14th day after his/her 7th day after his/her 14th day after his/her 14th day after his/her 14th day after his/her 14th day after his/her 14th day after his/her 14th day after his/her 14th day after his/her 14th day after his/her 14th day after his/her 14th day after his/her 14th day after his/her 16th day after his/her 14th day after his/ 196th day after his/her 14th day after his/her 14th day.

However, as recognized by the court below, the defendant et al. filed an application for industrial accident compensation insurance on September 12, 1997 with the approval of the medical care for the defendant's employees at the construction site on August 19, 197, and sustained injuries on the right side during the work." If the defendant did not attach a false witness's statement as seen above, it is not clear about the situation of the accident, and at least three weeks have passed from the date of the accident. Furthermore, there is a possibility that the defendant suffered injury such as the flag abandonment, flaging the first flag, etc. of the defendant's occupational accident, and there is no further proximate causal relation between the defendant's occupational accident and the 9th day of the accident, and there is no further possibility that the defendant would suffer from injury such as the above flag's occupational accident, and there is no further proximate causal relation between the defendant's occupational accident and the 9th day of the accident after the accident's accident.

C. On the other hand, the court below recognized that "the defendant requested the Park Sang-ok to request the industrial accident treatment around September 1997, and the records are 15:00 " around September 12, 1997 at will the date and time of the accident", "the scene of the accident was designated as the "the construction site of the base station in front of the Gyeonggi Provincial Police Agency", and the site chief officer prepared an application for industrial accident compensation insurance, and the co-defendant of the first instance court, as the site chief, prepared an application for medical care, and prepared a witness statement in accordance with the direction of the records." Even if the defendant did not participate directly in the process of preparing and submitting the application for medical care and a witness statement, the defendant did not participate in the process of claiming industrial accident compensation, and even if the co-defendant of the first instance court prepared and submitted the application for medical care and the witness statement, it cannot be denied immediately as the co-defendant of the first instance court did not know that the defendant was falsely prepared in the course of claiming industrial accident compensation.

However, Park Sang-ok stated that "at the time of preparing an application, the defendant was present next to the defendant" or "at the time of submitting an application to Olim Construction Co., Ltd., the principal contractor, the defendant was also the defendant who has obtained confirmation and sealing." The defendant stated that "at the time and place of the accurate accident" is "at the time and place of the accident" ( several 34 pages), and corresponding to this, the defendant made a statement that "at the time and place of the accident, the document was read by comparison, and the defendant did not confirm the exact time and place of the accident." The contents of the accident alleged by the defendant are similar to those of the accident on the application for the medical care (at the point of the work, 2 meters away from the bed and kned from the bed, and kned from the bed) (in particular, e.g., "two meters"), at least prior consultation with the defendant about the accident, at least it is confirmed that the defendant made a false statement in the process of demanding damages, such as the content of the accident.

D. Nevertheless, the court below determined that the facts charged in this case constitute a case where there is no proof of a crime. In so doing, there is an error of law by misunderstanding facts in violation of the rules of evidence or incomplete hearing, or by misunderstanding the legal principles on fraud, which affected the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-chul (Presiding Justice)